L7: Anti Discrimination

Question 1

Directive 92/85

Answer 1

pregnant women cannot be dismissed

Question 1

Article 157

Answer 1

Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied.

Question 2

Directive 2006/54

Answer 2

sex discrimination treatment

Question 3

Direct discrimination according to Directive 2006/54

Answer 3

where one person is treated less favourably on grounds of sex than another is, has been or would be treated in a comparable situation;

Question 4

Indirect discrimination (Directive 2006/54)

Answer 4

where an apparently neutral provision, criterion or practice would put persons of one sex at a particular disadvantage compared with persons of the other sex, unless that provision, criterion or practice is objectively justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary;

Question 5

Achbita

Answer 5

Amounts to indirect discrimination, if the wearing of religious symbols is not allowed across the board for all religions
Singling out muslim women = direct discrimination

Question 6

Garland

Answer 6

Rail travel facilities for former employees

Question 7

Rinner-Kuhn

Answer 7

Sick pay

Question 8

Seymour-Smith

Answer 8

Compensation payment for unfair dismissal

Question 9

Bilka-Kaufhaus

Answer 9

Occupational Pensions

Question 10

Lawrence

Answer 10

Same employer principle- equal pay doesnt apply if the employer is different

Question 11

What is a justification for indirect justification?

Answer 11

Real need, appropriate and necessary (Bilka-Kaufhaus; Enderby)

Question 12

Directive 2006/54

Answer 12

Equal treatment - prohibits direct and indirect discrimination

Question 13

What is the scope of directive 2006/54?

Answer 13

Conditions for access to employment
Access to vocational training
Working conditions, including dismissal
Membership of trade union

Question 14

What is prohibited under directive 2006/54?

Answer 14

Direct and indirect discrimination

Question 15

How is discrimination defined in directive 2006/54

Answer 15

[D]irect discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on any of the [prohibited] grounds.

Question 16

What are the 3 exceptions to prohibiton?

Answer 16

1) Occupational qualification provision
2) Pregnancy and maternity provision
3) Positive action

Question 17

What is the positive action provision?

Answer 17

Member States may maintain or adopt measures to ensure full equality between men and women in working life.

Question 18

Maternity leave provision

Answer 18

Women on maternity leave entitled to return to equivalent employment on no less favorable terms.

Benefit from any improvement in working conditions during absence.

Question 19

Webb

Answer 19

Replacement for a pregnant woman
Replacement also becomes pregnant but fires her
Held: direct sex discrimination

Question 20

Tele Danmark

Answer 20

Co hired a replacement for a woman on mat leave
Woman fails to disclose that she is pregnant at the interview
Court: question asked was illegitimate- woman had a right to lie as it should not have been asked

Question 21

Gerster

Answer 21

All those employed in agriculture would only be promoted if they had done 2 years
Could it be objectively justified?
Basis of promotion was performance related- court: a part time worker should get the opportunity to demonstrate that within 2 years they would have accomplished the same things
Most full-time workers were men; most part-time women

Question 22

Kalanke

Answer 22

Man & woman are equally qualified
For promotion, woman shall be given preference where women are underrepresented
Court struck this down- substituting the result instead of creating a level playing field

Question 23

Marschall

Answer 23

If a man & woman are equally qualified where women are underrepresented, women are given the job unless the man possesses characteristics tipping the balance in his favour (e.g. John has 3 kids he has to look after)
Woman needs to demonstrate disadvantages she faces

Question 24

Lommers

Answer 24

Allowed women to use subsidised nursery places in the ministry .
Women could access subsidised places, men could not
Court:
Upheld this- women has specific disadvantages when it comes to caring for women
Provided that in emergency cases, men could also have access to the nursery

Question 25

Abrahamsson (treatment)

Answer 25

Sweden- too few women professors
As they are underrepresented, suitably qualified female candidate will be preferred over a man even if the man is better qualified
Court struck this down

Question 26

What is the principle of intergenerational fairness/

Answer 26

Allowing younger academics a job (age diversity) in favour of older candidates = objective justification of age discrimination

Question 27

Employment Equality Directive (Directive 2000/78)

Answer 27

Prohibition of discrimination on grounds of religion or belief, disability, age or sexual orientation

Question 28

Can MS invoke a general safety provision? Johnston

Answer 28

No- Directive 2000/78 art 2(5) introduces a form of derogation for reasons related to public safety

Question 29

What does petersen establish in relation to age discrimination justification?

Answer 29

Measure could be compatible if it aimed to prevent serious harm to the social security system’s financial balance to achieve a high level of health protection.

If aimed at protecting patients’ health from dentists’ competence perspective, the measure wasn’t justified as the means weren’t necessary for the objective.

Question 30

Can MS justify differential treatment based on certain characteristics (for occupations)

Answer 30

if they constitute a genuine and determining occupational requirement, provided the objective is legitimate and the requirement is proportionate.

Question 31

Johnston case

Answer 31

The Royal Ulster Constabulary (RUC) justified not employing women as full-time members of the RUC Reserve, arguing that women carrying firearms would be at greater risk of assassination.

ECJ accepted the argument without requiring evidence, stating that sex could be a determining factor for certain policing activities.

Question 32

Sirdar

Answer 32

In Sirdar, the UK Royal Marines’ policy of excluding women was justified due to the need for ‘interoperability’ within the commando unit.

Question 33

Examples of justifiable differences for age discrimination

Answer 33

Fixing minimum age, professional experience, or seniority conditions for employment or associated advantages.

Question 34

Palacios de la villa

Answer 34

An employee challenged automatic termination of employment at compulsory retirement age.

ECJ determined it as direct age discrimination under Directive 2000/78.

Considered whether it could be justified under Article 6(1), despite the national law not expressly referring to a legitimate objective.

Question 35

Condition for age discrimination

Answer 35

Must be justified, objectively and proportionate

Question 36

When can an indirectly discriminatory measure be justified?

Answer 36

the measure answers a ‘real need’ of the employer; secondly,

the measure is ‘appropriate’ to achieve the objectives it pursues; and, finally, the measure is ‘necessary’ to achieve those objectives.

Question 37

Article 157 (4)

Answer 37

Positive action

Question 38

what is a positive action?

Answer 38

measures providing for specific advantages in order to make it easier for the underrepresented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers.

Question 39

Lommers

Answer 39

A national ministry set up a scheme to address the under-representation of women due to a lack of affordable child-care facilities.

Subsidized nursery places were reserved for female staff, with emergency access for male officials.

ECJ ruled the scheme acceptable if emergency access allowed any male officials caring for their children to have access to nursery places on the same conditions as female officials.

Question 40

Roca Alvarez

Answer 40

A law allowed female employees who were mothers to take leave during the first nine months following childbirth, but not male employees unless the child’s mother was also employed.
ECJ ruled this perpetuated traditional gender roles and was not permitted under Article 157(4) TFEU or Article 2(4) of the Directive.

Question 41

Kalanke

Answer 41

A German regional law prioritized women for promotion in sectors where they were under-represented.

Question 42

Why, in Kalanke was positive action inadmissible?

Answer 42

ECJ ruled it breached the Directive, considering it went beyond promoting equal opportunities and substituted equality of opportunity with equal representation.